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Some lawmakers who backed
malpractice reform now wonder if it went too far
By Greg Bluestein
ASSOCIATED PRESS
GAINESVILLE
- The repetition of pulling large sheets of chewing
gum from an assembly line, cracking them in half and heaving
them into a machine at the nearby Wrigley factory took its toll
on Pat Wright.
After more than 20 years in the
factory, she could hardly raise her left arm above her shoulder
and couldn't bear to lie on it at night.
She finally went under the
knife in 2003, but after the surgery she still felt pain. Early
last year, another surgeon found the problem: about a half-dozen
bright blue metal sutures that had mistakenly been left behind
in her shoulder.
Ever since, Wright has been
searching for an attorney to take her malpractice case, but they
all have refused, citing a new state law that puts a $350,000
cap on jury awards for a malpractice victim's pain and
suffering.
Because it can easily cost
$100,000 to get a malpractice case to trial, the gamble simply
isn't worth it for attorneys in Georgia anymore, and now some of
the same lawmakers who backed the cap are wondering if the law
was too extreme.
Just after Wright learned about
the sutures in her shoulder, state lawmakers 50 miles south in
Atlanta were overhauling Georgia's medical malpractice laws.
Following the model of states
including Texas and California, Georgia's Republican-led
Legislature capped jury awards and made it harder for emergency
room patients to win malpractice awards by placing a higher
burden of proof on the plaintiffs.
Gov. Sonny Perdue signed the
bill into law at an Atlanta hospital, surrounded by applauding
doctors and administrators, saying it would improve access to
health care throughout the state.
Doctors and hospitals contended
the measure, dubbed "civil justice reform," would
suppress rising malpractice insurance rates. They said doctors
were leaving Georgia - especially rural areas - at an alarming
pace and told lawmakers it would encourage doctors to stay.
Business lobbies, too, threw
their weight behind the bill because it encourages early
out-of-court settlements and penalizes parties who file
frivolous lawsuits.
But trial lawyers argued that
limiting damage awards puts an arbitrary price on a victim's
life, and that the state's medical insurer fostered a false
crisis by driving up premiums in a market with no competition.
The Medical Association of
Georgia, one of the most vocal supporters of tort reform, said
the law has transformed the state into a favorable environment
for doctors. Anecdotal evidence shows fewer malpractice claims
filed, and those that were have been settled more quickly, said
David Cook, the group's executive director.
Cook added that steadying
malpractice premiums have also stemmed the flow of doctors
leaving the state.
Pat Wright said she's one of
the unintended consequences of the law.
Since her surgeon found the
metal sutures in her shoulder, she's appealed to at least six
attorneys. Each has turned down her case, citing the new law.
Another problem: The two-year statute of limitations on her case
may have run out, but since the sutures were only found last
year, lawyers have told her she's still got a case.
She just can't find one to take
it.
"I don't feel like I've
been done right," she said. "Somebody should've taken
my case."
Others have had problems
finding attorneys, too. Willie Davis' wife, Janie, died of a
ruptured aorta minutes after leaving a Perry hospital, the
victim of what Davis says was a misdiagnosed heart condition.
Since then, he's been sent packing by six lawyers unwilling to
handle his case.
Atlanta attorney Joe Weeks said
two years ago he probably would have represented Davis. But
Janie was a 68-year-old homemaker, with no lost wages to recover
and no medical bills to repay.
"All we had is the value
of her life. And the Georgia Legislature said the value of her
life is $350,000," Weeks said.
When factoring in the cost of
taking such a case to trial, Weeks said it wouldn't be worth it.
The medical association's Cook
said claims that some people can't find attorneys may be
overblown. He said the $350,000 cap only would apply to a small
fraction of the cases filed each year, as many awards aren't
that lucrative.
In Georgia's Capitol, an
undercurrent is rising among some Republicans who argue that the
law may have gone too far.
A handful of GOP lawmakers
support a plan to roll back a portion of the tough standards
passed last year. The proposal would repeal the standard of
"gross negligence" that malpractice plaintiffs now
must prove in cases involving emergency room doctors.
"There were some who felt
like it went too far," said Sen. Joseph Carter, R-Tifton,
who proposed the revisions.
Sen. Preston Smith, chairman of
the powerful Judiciary Committee, said he hasn't ruled out
taking up Carter's bill or other proposals, particularly those
seeking to shore up the law as courts continue to chip away at
it.
State judges have struck down
parts of the law in 16 cases, ranging from rules governing which
venue the malpractice trials can take place to the stricter
standards for expert witnesses, said Allie Wall, director of
consumer advocacy group Georgia Watch.
Away from the legislative
wrangling, Wright is much more worried about her work shifts,
which will soon expand from 10 to 12 hours a day. She asked her
company to put her on "light" duty, but scraping gum
and packing boxes proved worse on her shoulder, so she returned
to her familiar machine.
Exactly one year since her
fateful suture-removing operation, her arm still swells and
aches. But she can raise it above her head now, new mobility
gained from rigorous rehabilitation.
When she returns home each day
about 6 p.m., she heads to the pulley system attached to a white
door in her kitchen. A familiar exercise, she uses the
rope-bound contraption to stretch her arm out for 30 minutes
everyday.
"Even on Sundays,"
she added.
"Nobody knows how much
pain I have gone through," she said with a faint shake of
her head. "It helps me get to the next day."
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